Equality before uniformity

Two intertwined topics that have recently reclaimed their place in news headlines are the Uniform Civil Code (UCC), and Muslim women’s rights, or rather wrongs. A Law Ministry note prepared for the Law Commission declares that the three impediments to legislating a UCC are “separatism, conservatism, and misconceived notions about personal laws”. The note is unambiguously clear as to which personal laws are getting in the way — those protected by their minority status, that is, Muslim personal law. However, Muslim personal law has also been in the news independently of the UCC issue — because of the PIL supporting Shayara Bano’s demand for the repeal of unilateral divorce (or triple talaq), and the responses this has received.

Comparing Hindu and Muslim women

During the 1990s, the idea of a UCC was extensively criticised by women’s groups who feared the unspoken intentions of the Hindu Right in advocating it. An influential strand of argument questioned public perceptions and assumptions about personal law, namely: Hindu personal law has been successfully reformed; in sharp contrast, Muslim law remains uncodified and imposes the worst vulnerabilities on Muslim women; therefore, Hindu personal law should be made the basis for a UCC. There was much to be questioned in such assumptions. For instance, it was pointed out that, historically, Muslim personal law was way ahead of its Hindu counterpart since marriage was understood to be a contract between individuals with built-in provision for divorce, while Hindu law languished within notions of sacrament, the absence of personhood for Hindu wives, the vagaries of the Hindu Undivided Family, and so on. Much was made of a Census study on marriage and polygamy (which had been cited in the famous ‘Towards Equality’ report of 1974 on the status of Indian women) which showed that the incidence of polygamy (usually bigamy) was in fact greater among Hindus than Muslims. Moreover, such wives had no rights under the reformed Hindu law, unlike the rights available to Muslim women under polygamy.

Now that we are once again faced with the spectre of a UCC being foisted on us, this represents an opportunity to take stock from where we are today. We believe that there are three main lessons to be learnt from our recent past. First, we must stop making dubious comparisons between Muslim and Hindu women. Having studied the comparative data on polygamy that continue to be cited, we noticed the following. One, the data come from a special sample survey conducted by the Census of India in 1960 of one lakh women, which is explicitly acknowledged to be a non-representative sample — that is, it may be suggestive, but cannot stand for entities like India, Hindu women or Muslim women. Two, the survey includes women who were married between 1940 and 1960 — which means that 15 of these 20 years were prior to the enactment in 1955 of the Hindu Code Bill that outlawed polygamy. And three, the overall incidence of polygamy reported for Hindu and Muslim women is 5.7 per cent and 5.6 per cent, respectively. In short, these data do not prove that there was more bigamy among Hindu women than Muslim women even in 1960, let alone in more recent times. (We may note in passing that the authors of the ‘Towards Equality’ report were particularly concerned about the high incidence of polygamy among tribal groups, where rates were increasing over time and had reached 18 per cent during 1951-60.)

The steady slide of Muslim women

Nothing is gained today by simply asserting that Hindu women are worse off than their Muslim counterparts — such careless claims may come back to haunt us in future. Yes, honour killings are sanctioned by khap panchayats in the very Hindu State of Haryana; but the khap campaign to amend the Hindu Marriage Act to enforce gotra and caste prohibitions has failed. Moreover, there is growing evidence that women are claiming their inheritance as daughters under the Hindu Succession (Amendment) Act, 2005, particularly in regions (such as Haryana) where land prices have shot up, and the support of in-laws is forthcoming. While it is nobody’s case that Hindu law has been successfully reformed, decades of Hindu majoritarianism may well have benefited many upper-caste Hindu women, including in courts of law. In contrast, the status of Muslims as delineated in the Sachar Committee report a decade ago is likely to have declined further given their increased marginalisation in social, economic and political terms, making it almost certain that Muslim women are on average worse off today than they were just 10 years ago.

The second lesson from the past decades is that we must learn from and support much more broadly the struggles that have been waged since the 1980s by a wide variety of Muslim women’s organisations. A range of organisations emerged between 1984 and 2013, including Awaaz-e-Niswaan, Muslim Women’s Rights Network, Bharatiya Muslim Mahila Andolan (BMMA), and the Bebaak Collective, to name only a few. They speak in many voices and have different viewpoints. Undoubtedly some do argue that the only available option today is to work for personal law reform “from within”. But this is by no means the only position. In any case, the distinction between what is “internal” and “external” to personal laws is not always clear. For example, while unilateral triple talaq is viewed as being contrary to true Islamic principles by many theological schools, polygamy is considered to be part of mainstream Islam. Yet there are organisations asking for the abolition of polygamy, thus pushing the outer boundaries of personal law reform. Moreover, Muslim women’s organisations have also been demanding economic and political rights. In sum, if a common code is impossible to argue for today, it is not because Muslim women are better off with their existing personal laws, but because of the extreme insecurity and precariousness of Muslim lives and livelihoods in contemporary India. This was shared at a recent national convention organised by the Bebaak Collective, “Muslim Aurton ki Awaaz: Sadak se Sansad Tak”, attended by over 500 Muslim women and others in New Delhi on February 27-28, 2016.

Resisting statist agendas anew

The third lesson is that feminists must remember and recover the creativity and energy of the 1990s. While being trapped in a reactive relationship to the state with respect to the UCC, feminists and women’s organisations did much more in the 1990s than simply resist majoritarian agendas. Despite bitter and acrimonious debates, many creative alternative visions emerged of how genuine equality could be brought into the realm of family life and related institutions. In the decades since, we have been exploring rights in intimate relations, rights in economic and political spheres more generally, and observing the innovative use of secular laws by minority groups, such as the Juvenile Justice (Care and Protection of Children) Rules, 2007 for adoption of children by Muslims and Christians. Today, we must revive and re-energise these visions and reassert our refusal to think within the confines of statist agendas.

It is amply evident that the Law Ministry’s note on the UCC does not venture beyond the old desire for uniformity, and barely finds room for equality. This makes it all the more imperative to nurture and promote alternative perspectives — diverse voices must be empowered to enter public discourse, whether or not the state is ready to listen. After all, the common goal is gender justice, whether it is uniform or plural.

Mary E. John is Senior Fellow, Centre for Women’s Development Studies. Hasina Khan is a member of Forum Against Oppression of Women, Mumbai and founder member of Bebaak Collective. The views expressed are personal.